May 15, 2012

Detailing the ugliness of modern clemency practice in Arizona

While the journalists at ProPublica continues to do great work exposing the ugliness of the clemency process in the federal system (details here and here), reporters at the Arizona Republic have detailed in this recent lengthy article that the clemency norms in that state are just as ugly. Here are the basics from an article headlined "Arizona prisoners rarely granted clemency":

By his 14th birthday, Tommy Londo was addicted to crack cocaine. With both parents in prison, he grew up on the streets of Phoenix, homeless and uneducated. He spent his teens in and out of mental hospitals and shelters. After he was arrested in 2004 for selling a $20 lump of crack to an undercover police officer, prosecutor Eric Rothblum described him as "a clear societal liability." Londo was sentenced to 15 years and nine months in prison.

Seven years later, in 2011, Arizona's Board of Executive Clemency unanimously agreed that Londo had turned his life around. He was working on his GED, was drug-free and had earned a certificate for good behavior in prison.

The board recommended commuting Londo's sentence to five years, stating in a letter to Gov. Jan Brewer that Londo was someone who "has made outstanding progress." The board noted, too, that the judge who sentenced Londo had called the prison term required by Arizona's mandatory-sentencing laws "excessively harsh" given the situation.

Brewer denied Londo clemency without comment last June. Londo has plenty of company. Statistically, if you are convicted of a felony in Arizona, you are more likely to be struck by lightning than granted clemency by the governor. Excluding the cases of inmates nearing the end of a terminal illness, Brewer is on track to grant the fewest clemency cases in more than two decades -- even when a judge and unanimous board recommend a shorter sentence.

Recent board members interviewed by The Arizona Republic believe clemency will be granted even less frequently in the future. Indeed, Brewer's decision to replace three of the five clemency-board members at once last month has led to legal and political turmoil: Departing board members say they were ousted for voting to grant clemency; and attorneys for an inmate scheduled to be executed Wednesday will be in Maricopa County Superior Court on Monday, seeking a court order to nullify the appointments, arguing that they violated state laws. If the court agrees, it would invalidate dozens of board decisions from the past three weeks and could stall the clemency process....

Budget cuts have reduced the number of clemency cases the board can hear to one-fourth as many as three years ago, creating a nearly two-year, 900-case backlog. This withering of clemency brings both personal fallout, in ruined lives and separated families, and a financial cost to taxpayers, who pay to house and feed inmates who could otherwise be working and paying taxes. In Londo's case, it will cost taxpayers at least $200,000, based on Department of Corrections per-inmate prison-cost estimates of $22,166 a year....

From 1913, when Arizona established a board of pardons and paroles, until 1993, fewer than 60 inmates a year applied for commutation, on average. In 1993, the state adopted so-called "truth in sentencing" laws, which effectively abolished parole. The new code requires offenders to serve at least 85 percent of their sentence before becoming eligible for community supervision; for many felonies, 100 percent of the sentence must be served. The laws, along with mandatory minimums that took discretion in sentencing out of the hands of judges, left commutation as the only avenue for most offenders to seek a reduced sentence. By 2005, commutation applications soared to more than 1,200 a year....

Brewer is the first governor in at least 34 years who has not issued a single pardon. She has denied each of the clemency board's 13 recommendations. By comparison, Janet Napolitano issued 22 pardons over six years, Jane Dee Hull issued seven over 5.3 years, Fife Symington issued 13 over 6.5 years, and Rose Mofford granted 13 over three years....

There is an exception to Brewer's aversion to clemency: She has granted 19 requests to release inmates medically judged to have only days or weeks to live and who weren't considered a public-safety threat. Otherwise, in her three years and four months in office, she has routinely denied unanimous board recommendations for clemency, leaving scores of prisoners serving longer sentences than the board found they deserved.

Brewer declined requests for an interview. Her spokesman, Matthew Benson, issued a statement saying that every case is reviewed and that Brewer "fulfills this solemn responsibility with the seriousness owed, and always mindful of the victims harmed by these crimes."

Perhaps the most-debated commutation rejected by Brewer is the case of William Macumber, who was convicted in 1975 of a 1962 double homicide and sentenced to life in prison. In a unanimous recommendation three years ago, the board said he had served excessive time in prison and had a record of behavior showing he is not a threat to society. Most importantly, the board called his conviction a miscarriage of justice, saying that "the evidence that now exists certainly casts serious doubt on Mr. Macumber's conviction."

Former state Judge Thomas O'Toole told the board that another man confessed to committing the murders to him in 1967, but attorney-client privilege required him to remain silent about the confession until after his client died.

Montgomery's office strenuously opposed Macumber's clemency petition, calling his petition misleading. Brewer denied commutation in November 2009, sparking critical national-media coverage. In October 2010, Brewer fled her own televised news conference after Macumber's son asked the governor about her decision.

"The parole board says he's innocent, yet she still won't do anything," says P.S. Ruckman Jr., an Illinois political-science professor who publishes a blog on clemency, pardonpower.com. He is highly critical of Brewer and other governors who he says don't appear to take their pardon powers seriously. "Sometimes the law has a disproportionate impact and may be too rigid. That's what the pardon power is for," he says. "Brewer has the power and discretion to have a larger sense of justice and to do something about it. That's her duty."

Since taking office, Brewer has granted five commutations, aside from those for inmates at death's door. Four of these reduced sentences by less than 2.5 years. The biggest reduction was for Christopher E. Patten, who was sentenced to seven years for manslaughter as the driver of a vehicle in a 2005 drive-by shooting in Phoenix. The judge noted that Patten was forced at gunpoint to drive the vehicle, turned himself in to police and testified against the shooters at the risk of his life. He served just under two years before the governor granted a commutation in October 2009. Aside from those granted to dying inmates, Brewer hasn't granted any commutations in the last 17 months and has rejected 39 recommended by the board, out of 1,180 applications, according to board records. That does not include the nearly 900 cases in the backlog.

This story makes me wonder if there may have been a big misunderstanding concerning the (in)famous interaction between Gov Brewer and Prez Obama captured in the photo posted above. Rather than having a testy encounters, perhaps Gov Brewer was telling Prez Obama how pleased and impressed she was that the Prez has been as much of a clemency scrooge as she has been.

to the 2 commenters above with any luck hopefully you'll both win a prison lottery

Posted by: ... | May 15, 2012 6:04:23 PM

It is one of the odder conceits of the defense that going to prison is the result of a "lottery."

Having been an AUSA for 18 years, I can tell you that a person has to make a serious, determined effort to wind up in prison.

Posted by: Bill Otis | May 15, 2012 6:44:50 PM

I can tell you that a person has to make a serious, determined effort to wind up in prison.

keep believing that in your fantasy world of glass houses because an increasingly alarming portion of the population don;t believe it or buy into that DOJ mindset anymore. the justice system is continuing to lose it's creditability with each passing day

Posted by: ... | May 15, 2012 10:18:28 PM

Sounds like the writer of the article was talking about the state of North Carolina. I have a better chance of winning the Mega millions lottery than someone receiving a pardon in NC.

Posted by: Anon | May 16, 2012 12:54:06 PM

The power of pardon should be taken out of the Governors hand and placed with the people of the state.

Posted by: Anon | May 16, 2012 12:56:16 PM

Anon --

"The power of pardon should be taken out of the Governors hand and placed with the people of the state."

....in which case it will be exercised even less frequently.

The idea that there is any groundswell (outside the True Believers of the defense) for increased numbers of pardons is just nuts. No one has adduced a shred of evidence for any such notion. It's just one of those pet causes of the Left that resonates in the Ideological Echo Chamber -- but nowhere else.

Posted by: Bill Otis | May 16, 2012 4:32:34 PM

Sorry Bill I cannot believe that it can be used less frequently when the politicians are afraid to use the power of the pardon because of political ramifications. The Governors now tend to use the power of pardon when they are not running for re-election thus they are less fearful of using the pardon power,even then it doesn't happen often. Put the power with the people of a state that will suffer no backlashes or should I say less backlashes. Since the Governor of North Carolina (Gov Perdue)is not running for re-election it will be interesting to see if she grants any pardons.

Posted by: Anon | May 17, 2012 2:03:23 AM

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